Republicans are planning to break decades of precedent and overrule the Senate parliamentarian to undo a Biden-era environmental policy.
Majority Leader John Thune announced Tuesday morning that the Senate will take up the vote to overturn waivers the Environmental Protection Agency granted to California that allowed the state to phase out gas-powered cars. The Senate parliamentarian ruled that the Congressional Review Act — the legislative vehicle Republicans plan to use to overturn the policy — does not apply to waivers.
Ignoring Parliamentarian Elizabeth MacDonough could open the door to ignoring her decisions later this year, when she will decide which policies can be part of the reconciliation bill and which should be subject to a 60-vote threshold filibuster. Democrats have warned that overruling the parliamentarian foreshadows how Republicans approach Senate rules in the near future, particularly as it applies to the Byrd Rule, which restricts what can be part of a reconciliation bill.
Thune dismissed this possibility in this floor speech, saying that Democrats’ concerns “are entirely misplaced.”
Thune called concerns that overruling the parliamentarian on this waiver will eventually open the door to ending the filibuster “hysterical.”
“We are not talking about doing anything to erode the institutional character of the Senate,” he said. “The EPA has submitted the waivers to Congress as rules, which is all that Congress has ever needed to decide something under the Congressional Review Act.”
Conservative and liberal legal experts are sharply divided about whether the Senate’s move can be subject to legal challenge, because the Senate is making a choice about its own procedures and has the authority to do so. The CRA has been used so rarely since its creation that its boundaries have not been thoroughly tested, and many gray areas remain, experts told NOTUS.
Many automakers and industry alliances lobbied for Congress to take up the repeal of California’s EV mandate, concerned more with the economic consequences of the EV mandate than any question of Senate procedure.
The California Air Resources Board (CARB) criticized Senate Republicans’ decision to overrule the parliamentarian.
“The use of the Congressional Review Act resolution is inconsistent with past precedent and violates the plain language of the Congressional Review Act itself as recognized by both the nonpartisan and well-reasoned analyses of the U.S. Government Accountability Office and the Senate Parliamentarian,” a spokesperson with CARB told NOTUS. “The vote does not change CARB’s authority. CARB will continue its mission to protect the public health of Californians impacted by harmful air pollution.
Anna Kramer is a reporter at NOTUS and an Allbritton Journalism Institute fellow. This story was produced as part of a partnership between NOTUS and San José Spotlight.
